Enigma

As I write this, a large community of single-malt aficionados in the UK is sampling The Glenlivet Cipher, billed as the “world’s most mysterious whisky.” I know that they’re sampling it (and that they’re enjoying it) because my phone keeps alerting me to their tweets. And since it is late morning here in Seattle, a time when I only rarely find myself sampling single-malt, I’m frankly a bit jealous.

The Cipher event involves the release of a limited number of bottles of a special whisky in all-black livery and a label devoid of some typical information (e.g., aging and cask information, tasting notes, etc.). Mysterious, indeed. The release is paired with an online activity sponsored by Glenlivet and live tasting events sponsored by brand ambassadors, allowing you to compare your tasting notes with the official (as yet unreleased) tasting notes (and the contestant with the highest percentage score (i.e., the closest to the official notes) apparently wins a bottle).

Of course, it isn’t just that I’m not in the UK that is preventing me from participating; I’m also hampered by the fact that I’m in the USA. Glenlivet says that Cipher is available “only in select countries” and as far as can be discerned, that phrase is itself code for “not available in meaningful quantities in the United States”. And why is that?

Well, to be sure the good folks at Pernod Ricard (owners of The Glenlivet) know a thing or two about marketing. Scarcity (or at least perceived scarcity) helps sell a product. If you combine that scarcity with some type of event that generates (or caters to) a vocal group of brand zealots, then you’re halfway to creating a marketing phenomenon. The interactive Cipher Experience is just such an attempt. Well done, you wacky Scotsmen.

Of course, the other reason that we can’t seem to get Cipher here might have a thing or two to do with US laws as well. A quick search of TTB COLA filings for The Glenlivet does not reveal an obvious application for Cipher. Could it be that the label isn’t TTB-compliant? Based on the photos online, it doesn’t appear that this is necessarily the case. The photos show brand name, country of origin, class/type designation, alcohol content, etc.

While the lack of aging information on the label is a bit unusual for a Glenlivet product (most of which are referred to by their age), it may not be problematic. The TTB requires an age statement if scotch whisky has been aged less than 4 years, but no such statement is mandatory if the product has been aged at least 4 years. So just as is the case with the nearly empty bottle of Laphroig Quarter Cask sitting on my shelf, it is certainly possible that the whisky could be aged in excess of the 4 year period and marketed without an age statement on the bottle (the Laphroig was bottled at 5 years).

Try as I might, I haven’t found a photo of the back of the bottle; could the TTB health warning be missing? Given that they are selling the Cipher in 25 markets, it seems unlikely that including the warning is the problem. But then again, since the TTB warning is more prescriptive than the warning in many (most?) other markets, perhaps this played a role.

Could the name “Cipher” itself have been a problem? This too seems remote. A cursory search of the USPTO reveals no live trademarks for the word “cipher” in connection with the sale of alcoholic beverages (or indeed beverages of any kind). So it seems likely that if Glenlivet wanted to roll out Cipher in the states it could obtain trademark protection on the name.

What gives? I’m not convinced it has anything to do with our laws (or the laws of any of the potential market countries). My money is on the brains behind the brand. By setting this up as a limited release now, Pernod is priming the market for a broader release later on. Simply put, we want what we can’t have. And so those of us who can’t find it in our stores (or online for delivery to the States) will sit and wait, ready to buy as soon as it becomes available. In the meantime, if anyone’s got an extra bottle of this lying around – send it to your friendly HoochLawyer. He’ll make good use of it.

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Published by Brian B. DeFoe

A business lawyer with an emphasis on assisting clients in consumer-facing industries, especially hospitality and retail. I have a keen appreciation for spirits, especially single-malt scotch whiskies (the peatier the better, please) and robust bourbons.
I live on Bainbridge Island, Washington with my wife, three sons and an ever changing menagerie. My practice is based out of Seattle.
View all posts by Brian B. DeFoe